A Citizens United sequel? Do Justices Ruth and Steve know something about their Supreme Court thug-colleagues that we don't?

Is one of the loons in the group secretly harboring non-elitist thoughts?

by Ken

The WaPo headline is tantalizing:

Two justices suggest Citizens United ruling
should be reconsidered in Montana case

The obvious thought is that one or more of the justices responsible for the Citizens United abomination, which made it official that elective office in the U.S. belongs exclusively to the highest bidder, has been sufficiently shamed by the spectacle of the 2012 election season to date to be willing to think about doubling back on that decision's shamefully ignorant and dishonest legal gibberish.

And the Post's Robert Barnes's lead sustains this impression: "Two Supreme Court justices suggested Friday that the court reconsider its controversial 2010 decision that allowed unlimited corporate and union spending in elections."

But then the illusion seems to me to disappear.

For one thing, it came as the court was blocking a decision by the Montana Supreme Court "upholding a century-old ban on corporate campaign spending in the state."

The Montana ruling seems squarely at odds with the court's 5 to 4 decision in Citizens United v. Federal Election Commission, which allowed unlimited corporate spending. The U.S. Supreme Court majority had said such independent spending did not give rise to corruption or the appearance of corruption.

In other words, the Supreme Court, in turning thumbs down on the Montana high court's ruling, was doing just what you would expect. So what's the story?

In Friday's order, Justices Ruth Bader Ginsburg and Stephen G. Breyer said the upheaval in the world of campaign finance since the Citizens United decision does not bear out the majority opinion.

"Montana's experience, and experience elsewhere since this court's decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption,' " Ginsburg wrote.

"A petition for certiorari [from those challenging the Montana court's decision] will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."

(Barnes later explains: "Ginsburg appeared to refer to the vast amounts of money spent by super PACs that have flourished in the aftermath of Citizens United and subsequent decisions by lower courts and the FEC.")

My takeaway? Justices Ruth and Steve are whistling in the dark. Unless, that is, they know something about one of their right-wing-loon colleagues. "Slow Anthony" Kennedy, maybe? Or maybe they're just hoping that one or more of their colleagues won't have the gall to "do it again."

But I really don't think so. Not from the confident way the court slapped the Montanans down. And the right-wing bloc on the High Court has hardly shown itself lacking in gall, or especially rich in shame. Of course, as reporter Barnes points out, there's no reason to assume the court would even take the case as envisaged in the Ginsburg-Breyer proposed scenario. And even if it does, the outcome I would expect would be requiring plaintiffs who complain about the powers of the rich to pay all the court costs of their "foolishness." In the era of the Roberts Court, we know who owns access thereto.

For the record, Barnes explains:

The Montana court's action has given rise to the first challenge of the Citizens United decision. By a 5 to 2 vote, the state court upheld Montana's 1912 Corrupt Practices Act, which prohibits certain political spending by corporations.

The Montana court acknowledged the conflict with Citizens United, but Chief Justice Mike McGrath said the state was especially vulnerable to "continued efforts of corporate control to the detriment of democracy and the republican form of government."

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